IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

: 

LIBERTARIAN PARTY OF OHIO, KEVIN : Case No. 2:11-CV-722 

KNEDLER, and MICHAEL JOHNSTON : 

 : 

Plaintiffs, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : 

JON HUSTED, : MAGISTRATE JUDGE NORAH KING 

 : 

Defendant. : 

 : 

ORDER GRANTING MOTION TO INTERVENE

 This matter comes before the Motion to Intervene filed by the Ohio General Assembly 

(the “General Assembly”). (Dkt. 15.) In the pendency of the General Assembly’s Motion, it 

filed a notice of appeal to the Sixth Circuit for review of this Court’s September 7, 2011, Order 

granting Plaintiffs’ Motion for Preliminary Relief. Upon the General Assembly’s oral request, 

the Court granted leave for counsel to appear on its behalf at the October 17, 2011 hearing on 

Plaintiffs’ subsequent Motion to Compel Expedited Relief. (Dkt. 18.) Neither counsel for 

Plaintiffs nor for Defendant Husted objected to the General Assembly’s appearance at that 

hearing. Plaintiff’s response to the General Assembly’s motion to intervene, however, attacks 

the General Assembly’s request as untimely. 

The General Assembly requests the ability to intervene in the event that Defendant 

Husted declines to appeal the Court’s preliminary injunction decision. Under Fed. R. Civ. P. 

24(a), “[o]n timely motion, the court must permit anyone to intervene who: 

(1) is given an unconditional right to intervene by a federal statute; or 

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(2) claims an interest relating to the property or transaction that is the subject of 

the action, and is so situated that disposing of the action may as a practical matter 

impair or impede the movant’s ability to protect its interest, unless existing parties 

adequately represent that interest.” 

 The General Assembly asserts that 28 U.S.C. 2403(b) provides a statutory right of the 

Ohio Attorney General to intervene on its behalf. Section 2403(b), however, only provides an 

absolute right to intervene in a “proceeding . . . to which a State or any agency, officer, or 

employee thereof is not a party.” Defendant Husted is the Secretary of State, and an officer of 

the State of Ohio. Section 2403(b) therefore does not apply in this case to allow the General 

Assembly to intervene unconditionally to defend the constitutionality of its laws in this case. 

 However, the Court finds that under Fed. R. Civ. P. 24(a)(2), the General Assembly 

should be allowed to intervene as a matter of discretion. Because Defendant Husted did not 

appeal this Court’s order granting Plaintiffs’ requested preliminary relief from Defendant 

Husted’s enforcing H.B. 194’s changes to O.R.C. §§ 3501.01 and 3517.01, and because the 

Court’s subsequent nunc pro tunc Order reaffirmed that the September 7, 2011, Order requires 

that the LPO be permitted to appear on the ballot for the November 2012 election as well as the 

now-passed November 2011 election, the General Assembly has a continuing manifest interest in 

the case which is not being adequately represented by Defendant Husted. 

 The General Assembly’s Motion is GRANTED, and it is hereby permitted to intervene 

as a Defendant in this action. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 Algenon L. Marbley 

United States District Judge 

Dated: March 12, 2012 

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